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FreedomWorks Takes on the NSA

Today, FreedomWorks president Matt Kibbe joined Ken Cuccinelli and Senator Rand Paul in filing an historic class action lawsuit in defense of the Fourth Amendment. The suit's targets include high ranking officials in the National Security Agency (NSA) and the Department of Defense who have been instrumental in overseeing the agency’s collection of massive amounts of telephone data known as the Mass Associational Tracking Program (MATP).

Speaking at a press conference, Mr. Cuccinelli said that the object of the suit is an injunction to prevent further collection of telephone data, and the removal of existing records from the NSA’s databases.

This suit is an important shot across the bow not just for those of us in the freedom movement, but also for anyone who cares about their privacy and has used a phone since 1996, when the MATP began. The Fourth Amendment guarantees the rights of all Americans to be secure in their persons and property, and not to be subjected to search or seizure without reasonable suspicion of having committed a crime. Starting with the distressing revelations by now-fugitive Edward Snowden last year, we now know that there are those in the government who do not consider these important protections to be worth the paper they are printed on.

For too long Americans have been willing to let their civil liberties slip away in the name of national security. Yet despite repeated requests, the NSA has been unable to supply any evidence that these telephone records have been effective in detecting or preventing terrorist attacks.

While others have attempted to challenge the NSA before, it has taken until now for a large group of citizens to band together to demand a fair hearing in court with legal representation arguing for the rights of the American people. So far, the class action suit claims to represent more than 386,000 people whose information has been collected and retained by the government without an appropriate warrant. The actual number of those affected, of course, is closer to 326 million, the number of cell phone subscriber connections in the United States.

In an era where our government is continually overstepping its bounds and exceeding its authority, it is crucial that we have principled individuals willing to stand up to big government bullies and fight to preserve the rights explicitly enshrined in the Constitution. The ultimate outcome of the case will have far reaching ramifications on how the Constitution is interpreted in the future, and even if it takes years for the court to reach a decision, the result will have an impact on our entire future as a nation.

I think the purpose for this NSA program is being missed, because it is not immediately apparent. It is not that this data will be used to spy on American's communications. Article 2 powers of the Executive include defense of the nation with no significant limitations. It is argued that the NSA program is what is necessary to defend the nation and Article 2's mandate conflicts in this case with the 4th Amendment. As a later amendment, it is arguable that the 4th supersedes and is superior to Article 2, but that just invites people to find a way to reconcile the two, leaving the true danger untouched. The real danger is that the NSA data-banks could be stolen (something that happened in the IRS scandal) and combined with other data-banks, both in governmental and the private sector. That super-data-bank is the kind of tool that could determine voter turn-out in future elections. We saw a relatively crude, mini-version of this in the 2012 Presidential election which Obama won because he turned out unpredictably large numbers of voters for him and Romney lost because unusually large numbers of predicted voters "stayed home". By filtering for known phone numbers or email addresses associated with political and cultural resources, this kind of data-bank will make it possible to identify the political and cultural leanings of most adult Americans. Political/cultural campaigns will then be able to be crafted to encourage or discourage voter turn-out based on political and social preferences with targeting by region. The political organization or alliance in possession of this super-data-bank will be able to effectively influence voter turn-out. If that is coordinated with government offices that effect American's personal lives, so that the opposition's supporters are harassed or mollified while the data-holder's supporters are helped or made angry ... democratic process will become essentially nullified. And the more it is used, the more it succeeds, the more resources for influencing elections will accumulate and victory be assured. This can be delayed but not stopped. No law or structural redesign will prevent this from happening and no counter-measure will nullify its impact so long as the federal government is involved in domestic affairs. In the original design of America the federal domestic authority was so limited that it could not be abused in a comparable fashion. If that original separation of powers was restored, any data-bank advantage of one faction could be countered by a similar effort by their opposition. But when the power of invasive federal domestic authority is added in ... whoever is in power will stay in power a Big Brother with only a token opposition.

If charges are not upheld against tyranny there will be dire consequences. This kind of lawlessness is not tolerable. Positions need to be forcefully vacated. These people do not understand that obeying our constitution will ensure future generations a civil land to live in. We do not have virtuous persons in certain positions. They must be replaced immediately. There is no time to lose. We may have let this go too long already. It's time for a state sponsored constitutional convention as well. When this happens the government will surly retaliate.

In every one of these situations: the push to attack Syria, the NSA spying on citizens, funding and implementation of Obamacare; proponents want to allow the government to do something it should not do, but claim we will be able to stop it if it goes any further. That thinking is backwards. The way to stop the NSA from gathering citizens' data, to keep the attack on Syria from escalating, and to stop Obamacare, is not to allow them to get started (funded) in the first place.

Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. -C.S. Lewis News breaks this morning that the NSA has the ability to monitor 75% of the nation's internet traffic at once. They can watch what 75% of Americans are doing at any one time online. Think on that for a moment.

Yesterday, U.S. District Judge Shira Scheindlin ruled the New York Police Department's "stop and frisk" procedure unconstitutional, indicating it amounted to "racial profiling." Sounds like a solid win for the Fourth Amendment, right? Maybe not.As Mayor Bloomberg explained:As recently as 1990, New York City averaged more than six murders a day. Today, we’ve driven that down to less than one murder a day. If murder rates over the last 11 years had been the same as the previous 11 years, more than 7,300 people who today are alive would be dead.

Fourth Amendment arguments against the NSA surveillance programs are plentiful these days. The general perception by the public, and numerous government officials, is that warrantless surveillance and data mining is an unconstitutional search and seizure under the Fourth Amendment. However, the existence of secret FISA courts could prove to be an impediment to Fourth Amendment challenges, which is why it’s time to dust off the often neglected and forgotten Third Amendment.

Karl Rove has a piece at FoxNews titled "Republicans must resist game of chicken with president over ObamaCare." In it, the establishment's favorite political guru dispenses bad advice to grassroots conservatives, based on the assumption that defunding the health care law on a spending bill "won't work." He's wrong about that.

The last time legislators updated the Electronic Communication Privacy Act (ECPA) was when Facebook CEO Mark Zuckerberg was a toddler. With new technological innovation and new privacy concerns, Congress must cooperate to bring the laws into the 21st Century. Reforming the ECPA is necessary to guarantee our Constitutional protection against warrantless digital searches and seizures. The answer is the Leahy Lee-Amendment.

Tonight the House voted on Justin Amash's amendment to the Defense Appropriations bill. The amendment would simply have required that the NSA's surveillance and collection of digital metadata only be conducted upon people who are directly under investigation.